Clemons v. Mechanical Devices, Co.
Annotate this Case
NO. 4-97-0020
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DENNIS CLEMONS, ) Appeal from
Plaintiff-Appellee and Cross- ) Circuit Court of
Appellant, ) McLean County
v. ) No. 95L12
MECHANICAL DEVICES, CO., )
Defendant-Appellant and Cross-) Honorable
Appellee. ) W. Charles Witte,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In January 1995, plaintiff, Dennis Clemons, filed a
complaint against defendant, Mechanical Devices, Company (Mechan-
ical), alleging that Mechanical had wrongfully discharged him in
retaliation for his filing a workers' compensation claim. In
October 1996, a jury returned a verdict for Clemons and against
Mechanical and awarded him compensatory damages of $63,520.23.
Mechanical appeals, arguing that the trial court erred
by (1) admitting evidence regarding the Illinois Wage Payment and
Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 1994))
and instructing the jury on portions of that act; (2) allowing a
lay witness to interpret statutory law; (3) allowing Clemons to
amend his complaint following the close of evidence; (4) denying
Mechanical's motion for judgment on the grounds of res judicata;
(5) denying Mechanical an opportunity to cross-examine Clemons as
to his testimony at an administrative hearing; (6) refusing to
allow a witness to testify regarding payments made by Clemons'
health insurance company; (7) refusing to give Mechanical's
nonpattern jury instruction defining "at will" employment to the
jury; and (8) allowing the jury to consider emotional distress as
an element of damages. Mechanical also argues that the verdict
was against the manifest weight of the evidence.
Because we agree with Mechanical's first argument--
namely, that the trial court erred by admitting evidence regard-
ing the Wage Act and instructing the jury on portions of that
act--we reverse and remand for a new trial.
I. BACKGROUND
In January 1995, Clemons filed a complaint against
Mechanical, alleging that Mechanical had wrongfully discharged
him in retaliation for his filing a workers' compensation claim.
This case was tried before a jury during September and October
1996, and the evidence showed the following. Mechanical, located
in Bloomington, Illinois, did design, engineering, and machine
shop work.
In August 1988, Clemons began working at Mechanical as
a machine operator. He told Mechanical's staff that he had
previously had back surgery. On June 1, 1989, Clemons injured
his back at work while lifting machine parts. He reported the
injury to his foreman, Clarence Hatfield, and the following day
(at the direction of Irene Sperry, a co-owner of Mechanical), he
saw Dr. Larry Nord, who prescribed pain medication. Although
Nord advised Clemons not to return to work, he did so that same
day and worked the rest of June without further injury.
Mechanical's workers' compensation carrier processed and paid the
bills incurred as a result of the June 1989 injury.
On July 1, 1989, Clemons heard his back "pop" while he
was working, yet he worked the remainder of his shift. Upon
leaving work that day, he told Hatfield that his back was "still
bothering" him and he was going to take it easy over the weekend.
Hatfield testified that he recalled Clemons reporting the June
1989 incident; however, he did not recall Clemons reporting an
injury on July 1, 1989. Linda Fillingham, Mechanical's office
manager, testified that she did not receive notice on July 1,
1989, that Clemons injured himself. Clemons testified that he
stayed flat on his back "the whole weekend," and his back pain
was in the same place as it was after the June 1989 injury.
On Monday, July 3, 1989, Clemons' back "popped" while
he was bending over to tie his shoes at home. He telephoned
Fillingham and told her that he was not coming to work because he
hurt his back while tying his shoes. Fillingham told him that
she would send him a health insurance form to complete. Clemons
testified that he had a conversation with Irene, who told him
that she "knew this [(the July 1989 injury)] was not workmen's
comp[ensation] and if [he] filed it that way, [he] would be
discharged." Clemons also stated that he believed Irene because
"she doesn't say anything without meaning it." At some point
after speaking with Irene, Clemons (with his wife's assistance)
completed the health insurance form, signed it, and returned it
to Mechanical. The form, as filled out by Clemons and his wife
on July 13, 1989, indicated that the July 1989 injury was not
work related.
Clemons also stated that someone from Mechanical called
Nord's office and told Nord's secretary not to file the July 1989
injury as a workers' compensation claim. Fillingham acknowledged
that she had a telephone conversation with Nord on July 10, 1989,
during which she told him to keep his records straight between
the June 1989 injury (which was being processed as a workers'
compensation claim) and the July 1989 injury (which was being
processed by Mechanical's health insurance company).
Clemons' wife, Janetta, testified that on July 3, 1989,
she heard "a loud pop" from Clemons' back as he was preparing to
go to work. Later that same day (after Clemons spoke with
Fillingham), they received a telephone call from Irene. When
Janetta told Irene that Clemons was not available, Irene said
that she did not like "to get the wives involved in things like
this" and hung up.
Clemons returned to work on Thursday, July 27, 1989.
He worked that day and Friday, July 28, 1989. He previously had
elected to take the next week (July 29, 1989, through August 4,
1989) as a vacation week.
On August 2, 1989, Clemons talked with an attorney,
Kevin Miller, at the Janssen Law Center (Janssen). On that same
day, Clemons signed a blank workers' compensation application in
Miller's office. Miller testified that he telephoned Mechanical
that same day and asked the identity of the company's workers'
compensation carrier. Someone at Mechanical told him that such a
request must be submitted in writing. Janssen's subpoenaed tele-
phone records did not show that Miller made a telephone call to
Mechanical. However, Miller stated that all of the telephone
records may not have been produced. Miller also stated that
Clemons was hesitant to file a workers' compensation claim;
nonetheless, Miller proceeded with the claim on August 2, 1989.
On August 4, 1989, Clemons went to Mechanical and told
them that he wanted his paycheck for Thursday, July 27, 1989, and
Friday, July 28, 1989. He was told that he would be paid for
those two days on August 11, 1989, in the following week's
regular check, thus making a full week's check. This was the
same way vacation had been paid to all Mechanical employees for
previous vacation periods. Mechanical paid its employees on
Fridays for the previous Thursday through Wednesday pay period
and paid them for vacations one week in advance. Miller called
and told someone at Mechanical that they could not hold the two
days' pay. Fillingham told Miller that Clemons could receive a
paycheck for those days, but if he took his pay in a manner
different from all other employees, he would no longer be em-
ployed by Mechanical. Fillingham also testified that Clemons
quit when he chose to be paid differently from all other employ-
ees and he was not fired because he retained an attorney to file
a workers' compensation claim.
Barb Gullett, Nord's receptionist, testified that when
Clemons came to Nord's office for the June 1989 injury, he filled
out a workers' compensation patient questionnaire. The first
bill sent out by Nord's office had a "WC" (workers' compensation)
designation. A bill dated July 27, 1989, also contained a "WC"
designation, but Gullett had crossed through that entry and
written "personal injury 7-3-89." Gullett stated that Nord gave
her that information. Prior to the July 10, 1989, telephone call
with Fillingham, all of Nord's records contained a "WC" designa-
tion. After the phone conversation, all of the records relating
to the July 1989 injury were changed to reflect a personal injury
designation.
On August 8, 1989, Mechanical received an application
for adjustment of claim stating that the July 1989 injury was
work related. At that time, Fillingham put the health insurance
forms on hold until she could determine whether the injury was
work related. She also stated that she voided some of the health
insurance checks and sent letters to health providers indicating
that Mechanical would not pay any health-related medical bills.
In her testimony during Mechanical's case in chief, Fillingham
stated that she had incorrectly testified that Mechanical had
paid none of Clemons' health-related medical bills because she
previously did not have access to all of the pertinent records.
She further stated that when Clemons submitted bills to Mechani-
cal for the July 1989 injury, Mechanical's health plan paid them
(except for Clemons' deductible and co-pay portions). Mechanical
did not pay other medical bills which were not submitted to it.
After the Industrial Commission denied his workers'
compensation claim for the July 1989 injury, Clemons resubmitted
his bills to Mechanical's health insurance provider. According
to Clemons, Mechanical never submitted the bills to its health
insurance company.
Randy Griffin, a former Mechanical employee, testified
that he sustained a hernia while lifting a block at work. He
reported his injury to Mechanical, and it instructed him to
complete a health insurance form. Fillingham subsequently
requested that he write a statement that his injury did not occur
at work. Griffin refused to do so because he believed it hap-
pened at work. Griffin stated that he never had any intention of
filing a workers' compensation claim; however, he did not want to
write the requested statement. That same day, Irene told him he
was no longer needed as an employee.
On this evidence, the jury returned a verdict for
Clemons and against Mechanical and awarded him compensatory
damages of $63,520.23.
II. RELEVANCE OF THE WAGE ACT
Mechanical first argues that the trial court erred by
admitting evidence regarding the Wage Act and instructing the
jury on portions of that act. Specifically, Mechanical contends
the Wage Act was irrelevant to the issues in this case. In re-
sponse, Clemons argues that evidence regarding the Wage Act was
relevant, not because he based his claim upon a violation of the
Wage Act, but because Mechanical proffered as a defense that
Clemons demanded that he be paid differently from all other
employees. We conclude that evidence regarding the Wage Act was
wholly irrelevant to the issues in this case.
A. Relevance of the Wage Act to Clemons'
Claim of Retaliatory Discharge
Clemons' initial complaint alleged that "in retaliation
for filing the worker's compensation claim, [Mechanical] wrong-
fully discharged [Clemons]." Clemons' amended complaint (filed
after the close of all evidence) alleged, in relevant part:
"10. *** [Mechanical] intentionally in-
terfered with and restrained [Clemons']
rights under the Workers' Compensation Act in
violation of 820 ILCS 305/4(h) [(West 1994)].
* * *
13. *** [I]n retaliation of [Clemons']
exercise of his statutory rights, [Mechani-
cal] wrongfully discharged [Clemons]."
During trial court arguments on Clemons' motion for leave to file
an amended complaint, he stated as follows:
"That [(the Wage Act)] is not what we
are alleging in this case; that is what [Me-
chanical] is alleging as [its] reason for
terminating [Clemons]. Our complaint alleges
that [Clemons] was terminated in retaliation
for his filing of a workers' compensation
claim. The [Wage Act] came up *** as Mechan-
ical Devices' defense in this case."
Prior to granting Clemons leave to file an amended complaint, the
court specifically noted that the "statutory rights" referred to
in paragraph 13 of the amended complaint "are in fact the
workmen's comp[ensation] statutory rights."
Thus, the only allegation of retaliatory discharge
properly before the jury involved Clemons' filing a workers'
compensation claim. To prove a retaliatory discharge for filing
a workers' compensation claim, a plaintiff must show that (1) he
was an employee before the injury; (2) he exercised a right
granted by the Workers' Compensation Act (820 ILCS 305/1 et seq.
(West 1994)); and (3) he was discharged and the discharge was
causally related to his filing a claim under the Workers' Compen-
sation Act. Gonzalez v. Prestress Engineering Corp., 194 Ill.
App. 3d 819, 823, 551 N.E.2d 793, 796 (1990). Accordingly,
Clemons did not have to show that Mechanical had violated the
Wage Act in order to prove a retaliatory discharge for filing a
workers' compensation claim.
B. Relevance of the Wage Act to Mechanical's Defense
Although Clemons agrees that he did not allege that
Mechanical wrongfully discharged him in violation of the Wage
Act, he nonetheless contends that evidence regarding that act and
whether Mechanical violated it was relevant because Mechanical
proffered as a defense that Clemons ended his employment with
Mechanical as a result of his demand that he be paid differently
from other employees. We disagree.
As Clemons correctly points out, in Miller v. J.M.
Jones Co., 225 Ill. App. 3d 799, 803, 587 N.E.2d 654, 658 (1992),
this court discussed the three-tier allocation of proof in Civil
Rights Act cases (42 U.S.C. 2000e et seq. (1994)), as described
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), although in
Miller we called it the "standard of proof." In Miller, we noted
that some courts utilize that standard in retaliatory discharge
cases. Under the three-tier allocation of proof, the plaintiff
makes out a minimal prima facie case of retaliatory discharge.
Once the plaintiff does this, the burden shifts to the defendant
to rebut the prima facie case by presenting some legitimate,
nonretaliatory reason for the plaintiff's discharge. If the
defendant meets his burden, the presumption raised by the prima
facie case is rebutted, and the plaintiff must satisfy the ulti-
mate burden of proof by showing that the defendant's reason for
the discharge is pretextual. See Miller, 225 Ill. App. 3d at
803, 587 N.E.2d at 658.
In Miller, however, this court neither applied nor
adopted the three-tier allocation of proof in retaliatory dis-
charge cases. To the extent that other courts have adopted that
allocation of proof in such cases (see Hugo v. Tomaszewski, 155
Ill. App. 3d 906, 508 N.E.2d 1139 (1987); Bragado v. Cherry
Electrical Products Corp., 191 Ill. App. 3d 136, 547 N.E.2d 643
(1989)), we decline to follow them. In the context of a retalia-
tory discharge claim, it would simply make no sense to require
the defendant to put forth a legitimate, nonretaliatory reason
for its discharge of the plaintiff. As our supreme court wrote
in Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159, 601 N.E.2d 720, 728 (1992):
"Despite the revolutionizing effect of
Kelsay[v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978)], the common law doctrine
that an employer may discharge an employee-
at-will for any reason or for no reason re-
mains the law in Illinois. [Citation.]
Kelsay only excepts discharges which violate
a clearly mandated public policy." (Emphasis
added.)
In Kelsay, the supreme court first recognized the tort of retal-
iatory discharge as an exception to the general rule that "at-
will" employment is terminable at any time for any reason or no
reason.
In addition, as this court wrote in Foiles v. North
Greene Unit District No. 3, 261 Ill. App. 3d 186, 188-89, 633 N.E.2d 24, 26 (1994), quoting 30 C.J.S. Employer-Employee Rela-
tionship 35, at 67, 40, at 70-71 (1992):
"'[A]t common law the right of the
employer to terminate the employ-
ment is unconditional and abso-
lute.'
* * *
'[A]n employment for an indefinite
term may be terminated at the will
of either party, regardless of the
length of service, for or without
cause, and without giving any rea-
son or explanation therefor ***.'"
(Emphasis added.)
Because the common law doctrine of employment at will
continues to be the law of this State, we hold that the three-
tier allocation of proof that applies in the Civil Rights Act
cases does not apply in the context of retaliatory discharge
claims. Thus, the defendant in a retaliatory discharge action is
not required to put forth evidence of a legitimate, nonretalia-
tory reason (or, for that matter, any reason) for its discharge
of the plaintiff. To hold otherwise would essentially abrogate
the common law doctrine of employment at will.
However, the defendant may choose to provide a reason
for its discharge of the plaintiff. The supreme court has held
that "[t]he element of causation is not met if the employer has a
valid basis, which is not pretextual, for discharging the employ-
ee." Hartlein, 151 Ill. 2d at 160, 601 N.E.2d at 728. In this
regard, we reject Clemons' contention that the causation element
is satisified merely because the defendant states that it fired
the plaintiff for an invalid (illegal) reason unrelated to the
retaliatory discharge claim. Considering that (1) a retaliatory
discharge claim is a narrowly circumscribed exception to the
common law doctrine of employment at will, and (2) the ultimate
issue concerning the causation element is the employer's motive
for discharging the employee (see Hartlein, 151 Ill. 2d at 163,
601 N.E.2d at 730), we hold that a "valid basis" means valid in
the context of plaintiff's claim of retaliatory discharge for
plaintiff's having filed a claim under the Workers' Compensation
Act.
Such a valid basis may indeed be "invalid" in other
contexts. For example, a defendant may proffer as a reason for
its discharge of a plaintiff-employee that the employee was dis-
charged because of (1) his age (see Mein v. Masonite Corp., 124
Ill. App. 3d 617, 618, 464 N.E.2d 1137, 1139 (1984) (where the
court held that plaintiff could not state an independent cause of
action for wrongful discharge on the basis of age because of the
comprehensive remedies provided in the Illinois Human Rights Act
(775 ILCS 5/1-101 et seq. (West 1994)))); (2) the employee's
gender (actionable pursuant to the Civil Rights Act of 1964 as
amended by the Equal Employment Opportunity Act of 1972 (42
U.S.C. 2000e (1994))); or (3) the employee's disability (action-
able pursuant to the Illinois Human Rights Act (see 775 ILCS 5/1-
101 et seq. (West 1994))). Thus, the defendant in a retaliatory
discharge action--if it so chooses--may provide any reason for
its discharge of the plaintiff, so long as the reason is not part
of the plaintiff's claim of retaliatory discharge for his having
filed a workers' compensation claim.
Applying these principles to the present case, Mechani-
cal was not required to provide any reason for its discharge of
Clemons. However, it chose to proffer a reason--namely, that
Clemons demanded to be paid differently from all other Mechanical
employees and contrary to the manner in which employees always
had been paid for weeks partially worked that abutted vacation
weeks. That reason was "valid" in the context of a retaliatory
discharge claim. Whether Mechanical was violating the Wage Act
(see 820 ILCS 115/1 et seq. (West 1994)) is wholly irrelevant to
the trier of fact's ultimate causation determination--namely,
whether Mechanical wrongfully discharged Clemons for filing a
workers' compensation claim.
In this case, the trial court repeatedly allowed in
testimony regarding the Wage Act, including erroneously allowing
Fillingham to read and interpret portions of the Wage Act to mean
that Mechanical's method of payment violated the Wage Act. See
Town of the City of Bloomington v. Bloomington Township, 233 Ill.
App. 3d 724, 735, 599 N.E.2d 62, 69 (1992) ("A court should not
permit opinion on a question of law [citations] unless the court
is dealing with a question of foreign law"); see also Magee v.
Huppin-Fleck, 279 Ill. App. 3d 81, 86, 664 N.E.2d 246, 249 (1996)
(expert testimony concerning statutory interpretation is not
proper, even if the witness is an attorney). Because the Wage
Act is irrelevant to the issues in the present case, we hold that
the court clearly abused its discretion by allowing in any
testimony regarding that act. See Gill v. Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190, 194 (1993) (a reviewing court will
not reverse a trial court's admission of evidence on relevance
grounds absent a clear abuse of discretion).
C. Prejudice to Mechanical
Mechanical further contends that the admission of the
evidence regarding the Wage Act--particularly when viewed togeth-
er with the trial court's instructing the jury on that act and
Clemons' statements during closing argument--"served only to
confuse the jury and severely prejudiced [Mechanical]." We
agree.
The trial court instructed the jury (at Clemons'
request) essentially as follows. The Wage Act provides that
all wages earned by an employee during a weekly pay period shall
be paid no later than seven days after the end of the weekly pay
period in which the employee earned the wages. Further, any
employer who knowingly discharges or discriminates against an
employee because that employee (1) has complained to the employ-
er, the State Director of Labor, or his authorized representa-
tive, that the employer has not paid him in accordance with the
Wage Act, or (2) has instituted a proceeding under or related to
the Wage Act, or (3) has testified or is about to testify in an
investigation or proceeding under the Wage Act, is guilty, upon
conviction, of a Class C misdemeanor.
This instruction was a modified version of Illinois
Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1995) (here-
inafter IPI Civil 3d) and, as such, should not be given unless
some evidence existed to support a finding that the defendant's
violation of the statute was the proximate cause of the
plaintiff's injury. French v. City of Springfield, 65 Ill. 2d 74, 81, 357 N.E.2d 438, 441-42 (1976); see also IPI Civil 3d No.
60.01, Notes on Use (which provides that "[t]his instruction
should be given only where the evidence would support a finding
that the injury complained of was proximately caused by a viola-
tion of a statute").
Because the Wage Act is irrelevant to the issues in
this case, this instruction may have confused the jury as to the
issues before it and prejudiced Mechanical in its defense--which
was that Clemons left because of a dispute over how Mechanical
paid his wages. Thus, it was critical to Mechanical's defense
that the jury understand that the only determination it needed to
make regarding Mechanical's payment method was whether Clemons'
demand to be paid differently than other employees constituted
Mechanical's motive for discharging him.
In addition, the effect of this erroneous instruction
was heightened during closing argument, when Clemons stated as
follows:
"[Clemons' attorney]: If Mechanical
Devices starts discharging their at-will
employees because of the color of their skin,
they are liable. If they start discharging
their employees for their gender, they are
liable. If they start discharging their
employees in violation of Illinois statute,
they are liable. It is as simple as that.
Read the statute." (Emphasis added.)
This comment--which the jury could easily have understood to be a
reference to the Wage Act (the "statute" that the court quoted to
the jury at Clemons' request)--may well have confused the jury
regarding the issues before it and whether a violation of the
Wage Act could support a finding of retaliatory discharge.
Under the circumstances of this case, we conclude that
the trial court's error in admitting evidence regarding the Wage
Act and instructing the jury on that statute--when viewed togeth-
er with Clemons' comments during closing argument--seriously
prejudiced Mechanical in its defense so as to deprive Mechanical
of a fair trial. Accordingly, we reverse the judgment for
Clemons and remand for a new trial.
III. ISSUES ON REMAND
Although we have determined this case must be remanded
for a new trial, Mechanical raises other issues that will likely
arise on remand. We address these issues separately.
A. The Trial Court's Refusal To Allow Mechanical To Cross-Examine
Clemons as to His Testimony at the DES Hearing
Mechanical argues that the trial court erred by refus-
ing to allow it to cross-examine Clemons regarding what he
testified to at a hearing in 1989 before the Department of
Employment Security (DES) on Clemons' claim for unemployment
compensation. We disagree.
Where the language expressed in a statute is clear and
unambiguous, a court's proper function is to enforce the law as
enacted by the legislature. Hinojosa v. Joslyn Corp., 262 Ill.
App. 3d 673, 677, 635 N.E.2d 546, 549 (1994). A court construing
a statute should read it as a whole, give the statutory language
its plain meaning, and import to the statute the fullest possible
meaning to which it is susceptible. Central Illinois Public
Service Co. v. Illinois Commerce Comm'n, 268 Ill. App. 3d 471,
484, 644 N.E.2d 817, 826 (1994). Further, in Howard v. Forbes,
185 Ill. App. 3d 148, 152, 541 N.E.2d 685, 688 (1989), this court
held that "the court must enforce the statutory privilege [of
section 1900 of the Unemployment Insurance Act (Insurance Act)
(Ill. Rev. Stat. 1987, ch. 48, par. 640)] as enacted without
resorting to other interpretation tenets."
Section 1900(A) of the Insurance Act now provides as
follows:
"Except as provided in this Section,
information obtained from any individual or
employing unit during the administration of
this Act shall:
1. be confidential,
2. not be published or open to
public inspection,
3. not be used in any court in any
pending action or proceeding,
4. not be admissible in evidence in
any action or proceeding other than
one arising out of this Act."
(Emphasis added.) 820 ILCS
405/1900(A) (West 1994).
We note that this section included the same language in its 1989
version, which was in effect at the time of the DES hearing. See
Ill. Rev. Stat. 1989, ch. 48, par. 640.
Giving this statutory language its plain and fullest
possible meaning, we conclude that "information obtained from any
individual" means just that and thereby prevents disclosure of
information obtained from the claimant in any action or proceed-
ing arising outside of the Insurance Act. To the extent McMahon
v. Richard Gorazd, Inc., 135 Ill. App. 3d 211, 224, 481 N.E.2d 787, 796 (1985), holds otherwise, we decline to follow it. Thus,
we conclude that cross-examination of Clemons regarding what he
testified to at the 1989 DES hearing is prohibited by section
1900(A) of the Insurance Act. Accordingly, we hold that the
trial court did not err by refusing to allow Mechanical to cross-
examine Clemons as to his testimony at the 1989 DES hearing.
B. The Trial Court's Refusal To Allow a Witness To Testify
Regarding Payments Made by Clemons' Health Insurance Company
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance
Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material under Supreme Court Rule 23 omitted.
C. The Trial Court's Refusal To Give Mechanical's Nonpattern
Instruction Defining "At Will" Employment to the Jury
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
D. Punitive Damages
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
IV. CONCLUSION
For the reasons stated, we reverse and remand for a new
trial consistent with the views expressed herein.
Reversed and remanded.
McCULLOUGH, J., concurs.
COOK, J., dissents. JUSTICE COOK, dissenting:
I respectfully dissent. I would affirm the judgment of
the trial court.
The Wage Act provides that "[a]ll wages earned by any
employee during a weekly pay period shall be paid not later than
7 days after the end of the weekly pay period in which the wages
were earned." 820 ILCS 115/4 (West 1994). Clemons worked
Friday, July 28, and Saturday, July 29. The pay period that
included those days ended Wednesday, August 2. On the next
payday, Friday, August 4, while he was on vacation, Clemons asked
to be paid for July 28 and 29. Mechanical responded that he
would not be paid for those days until Friday, August 11.
Mechanical finally did pay Clemons on August 4, but discharged
him that same day. The Wage Act did not require that Clemons be
paid on August 4, but the Wage Act did not allow Mechanical to
wait until August 11.
The trial court held that an illegal defense is no
defense and allowed the jury to determine whether Mechanical's
defense was an illegal defense, whether the Wage Act had been
violated. If Mechanical had conceded that it had violated the
Wage Act, the trial court apparently would have kept out any evi-
dence of that reason for firing Clemons, whether that evidence
was presented by Clemons or by Mechanical. In determining that
an illegal defense is no defense, the trial court relied in part
upon our statement in Miller that the employer should adduce
"some evidence of lawful motivation for the challenged action."
Miller, 225 Ill. App. 3d at 803, 587 N.E.2d at 658. Miller,
however, was referring to the three-tier formula of the Civil
Rights Act cases, which I agree should not be applied to retalia-
tory discharge cases. I also agree with the majority (slip op.
at 13) that "valid basis" or "lawful motivation," as used in
earlier cases, simply meant a basis or motivation that would
defeat a claim of retaliatory discharge under Illinois law.
Nevertheless, the question whether an illegal defense
can be a defense in a retaliatory discharge case must be ad-
dressed. Should an employer really be allowed to profit from its
own illegal conduct and tell the jury, "I fired plaintiff because
he was black," or "I fired plaintiff because she was a woman"?
Such defenses are usually counterproductive because they are
offensive to juries, but in the present case the jury would not
have known Mechanical's conduct was (arguably) illegal unless it
were given that information. The statement is sometimes made
that at common law an employee at will can be discharged at any
time, "for a good reason, a bad reason, or no reason at all."
Ryherd v. General Cable Co., 124 Ill. 2d 418, 427, 530 N.E.2d 431, 435 (1988). The fact that a particular "bad reason" cannot
be used offensively in a retaliatory discharge case, however,
does not require that such "bad reason" be allowed to be used
defensively. It is possible to limit the employee's argument to
the question whether he was fired in violation of the Workers'
Compensation Act, without allowing the employer to argue the
employee was fired because he was black, et cetera. Of course,
the failure to present a reason for discharge will make it diffi-
cult for the employer to succeed. See Wieseman v. Kienstra,
Inc., 237 Ill. App. 3d 721, 733, 604 N.E.2d 1126, 1135 (1992)
(Chapman, J., dissenting) (most cases find in worker's favor
unless employer had a reason for discharge).
Mechanical argues that an employer has other forums and
remedies available if he or she is fired because of race, gender,
age, disability, or in violation of the Wage Act. It is common,
however, for wrongful acts to carry collateral consequences. The
law is reluctant to allow a wrongdoer to profit from his own
wrong, particularly where he seeks to enlist the aid of the court
in doing so. For example, the courts will not enforce a check
given in payment of a gambling debt. Kedzie & 103rd Currency
Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 119, 619 N.E.2d 732,
737 (1993). The fact that other remedies exist is no answer to
the question whether an illegal defense can be a defense.
Mechanical argues that there can be no showing that the
Wage Act has been violated without a labor board finding to that
effect. That is not correct. Evidence of other crimes, wrongs,
or acts may be admitted without showing that there has been a
conviction. The proponent must show that a crime took place and
that the defendant committed it, but that proof need not be
beyond a reasonable doubt, only by more than a mere suspicion.
People v. Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348
(1996).
Even if an illegal defense is a defense, I disagree
with the majority's argument that Mechanical's violation of the
Wage Act was "wholly irrelevant." Slip op. at 8. The issue is
whether Mechanical's motive was to discharge Clemons because of
his workers' compensation claim or whether the motive was to dis-
charge him because of his complaints about being paid late (or
perhaps both). When a litigant argues it had a certain motive in
performing an act, it is relevant that such motive would result
in a violation of the criminal law. We should not assume that
Mechanical is equally willing to engage in conduct that violates
the criminal law and conduct that does not. The criminal code
may be viewed as a standard of conduct by which most individuals
and employers abide. Evidence is relevant if it has any tendency
to make the existence of any fact of consequence more or less
probable. Relevant evidence is admissible even when it is
prejudicial to the opponent. See People v. Kidd, 175 Ill. 2d 1,
37, 675 N.E.2d 910, 927 (1996) (gruesome photographs). Evidence
of other crimes is admissible if it is relevant for any purpose
other than to show propensity to commit crime. People v. Jones,
156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993). Mechanical
should not be allowed to avoid the relevant implications of its
actions just because those actions put Mechanical in a bad light.
The trial court took the position that only a violation
of the Workers' Compensation Act, and not a violation of the Wage
Act, could be a basis for recovery in a retaliatory discharge
action. Under that view, the evidence of a Wage Act violation
was admissible for some purposes, but could not be the basis for
a finding of liability or an award of damages, and a limiting
instruction was necessary. Defendant's jury instruction No. 40
would have told the jury that employment was presumed to be at
will, that at-will employees could be terminated for any reason
or no reason at all, and "if you find Dennis Clemons' filing of a
workers' compensation claim was not the determinative factor in
Dennis Clemons' discharge, you must decide in favor of Mechanical
Devices." The jury instruction had some merit, although a better
statement would have been whether the claim was "a determinative
factor." The court did give defendant's jury instruction No. 10,
listing the elements Clemons had to prove, including "that Dennis
Clemons' filing of a claim under the Workers' Compensation Act
resulted in his discharge from his employment." A limiting
instruction was necessary in this case, and non-IPI jury instruc-
tions had to be given (there are no specific instructions for
retaliatory discharge in IPI), but I cannot say that defendant's
jury instruction No. 40 would have improved upon the instructions
already given. Under defendant's jury instruction No. 10,
defendant was free to argue to the jury that a violation of the
Wage Act could not be a basis for liability and that the jury had
to find that defendant intended to retaliate for plaintiff's
filing of a workers' compensation claim before plaintiff could
recover.
A major concern here is the argument that plaintiff
sandbagged defendant, that the pleadings alleged a violation of
the Workers' Compensation Act, but plaintiff proved up a viola-
tion of the Wage Act. Under the facts of this case it would have
been improper for plaintiff to amend his pleadings to change
theories at the close of the evidence. See Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 467-68, 605 N.E.2d 493, 508
(1992) (other party would be prejudiced or surprised by the
proposed amendment). The trial court made it clear, however,
that it was not allowing a change of theories, that there was no
retaliatory discharge action for a violation of the Wage Act.
Because there was no change of theories, the amendment was not
particularly significant. Defendant argues the jury was never-
theless confused and impermissibly awarded damages for a viola-
tion of the Wage Act. The trial court recognized that an award
on that basis would be improper and took the steps it deemed
necessary to prevent it. Defendant does not suggest other steps
that should have been taken, except to argue that evidence of the
Wage Act violation should have been excluded entirely, with which
I disagree. If the evidence of the Wage Act violation is viewed,
not as a change of theory, but as impeachment of defendant's
witnesses, there was no unfair prejudice or surprise in this
case. See Flynn v. Edmonds, 236 Ill. App. 3d 770, 785, 602 N.E.2d 880, 889 (1992) (if impeaching information must be dis-
closed before trial, witness will either not appear or will
change testimony).
Mechanical argues that its office manager, Fillingham,
was improperly "allowed" to interpret statutory law. It is cer-
tainly improper for a witness to testify what the law is. The
jury takes its law from instructions given it by the judge, not
from the testimony of witnesses. See Bloomington, 233 Ill. App.
3d at 735, 599 N.E.2d at 69. When the issue is whether a party
has knowingly violated a statute, however, it is appropriate to
ask that party (1) whether it was aware of the statute, (2) is
this a common statute of which employers should be aware, (3)
whether it agrees the statute was violated, and (4) how can it be
said the statute was not violated when the statute provides X,
and the facts are Y? See Selby v. Danville Pepsi-Cola Bottling
Co., 169 Ill. App. 3d 427, 437, 523 N.E.2d 697, 702 (1988). If
Clemons were really attempting to have a witness interpret the
law, it would be unlikely that he would use Mechanical's office
manager as that witness.
Mechanical complains that the court read a portion of
the Wage Act to the jury as a part of its instructions, but
assuming the Wage Act was relevant at all to the case, it had to
be brought to the jury's attention in some manner. The proper
way for a jury to be told of the law that applies to the case is
through the instructions given it by the court. I do not consid-
er the instruction given to be an IPI No. 60.01 instruction.
Fillingham testified she voided some of the health
insurance checks and sent letters to health providers indicating
that Mechanical would not pay health-related medical bills. That
testimony shows malice on the part of Mechanical. Clemons was
entitled to payment of his bills from one source or the other,
the health insurer or the workers' compensation insurer. If the
claim were later determined to be job-related, the insurer would
have been entitled to a credit for payments already made under
the health policy. When Fillingham returned to the stand, she
changed her testimony and said that the medical bills were paid
under the health policy. Clemons testified the bills were not
paid and were turned over to a collection agency. Mechanical
then attempted to show the bills were paid by the health insurer
for Clemons' wife, after some period of time had elapsed. I
agree that testimony was getting pretty far afield and the trial
court acted within its discretion in excluding it.
It is not clear that the supreme court, when it is
faced with the issue, will hold that firing an employee who com-
plains about a violation of the Wage Act cannot give rise to a
retaliatory discharge action. The Wage Act provides:
"Any employer *** who knowingly dis-
charges or in any other manner knowingly
discriminates against any employee because
that employee has made a complaint to his
employer *** that he or she has not been
paid in accordance with the provisions of
this Act *** is guilty, upon conviction, of
a Class C misdemeanor." 820 ILCS 115/14(c)
(West 1994).
In Barr the plaintiffs alleged various constitutional rights were
violated when they were discharged for their activities in
connection with a labor dispute. The supreme court contrasted
those general allegations with Kelsay, where "the public policy
of allowing injured workers to freely file workmen's compensation
claims was clearly mandated by the legislative enactment of the
Workmen's Compensation Act." Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 525-26, 478 N.E.2d 1354, 1356 (1985). In the present
case, the legislature has clearly indicated that it is contrary
to the public policy of the state to discharge workers who
complain about violations of the Wage Act. Abrams v. Echlin
Corp., 174 Ill. App. 3d 434, 528 N.E.2d 429 (1988), did not hold
that violations of the Wage Act may never be the basis of a
retaliatory discharge action. Abrams affirmed the dismissal of
the complaint before it because the plaintiff did not identify
any provisions of the Wage Act that were violated when the
employer indicated it would set off commissions paid on returned
merchandise. Abrams, 174 Ill. App. 3d at 440, 528 N.E.2d at 433.
Plaintiff's right to commissions was not dealt with by the Wage
Act, but by a private agreement between the parties. Kavanagh v.
KLM Royal Dutch Airlines, 566 F. Supp. 242 (N.D. Ill. 1983), is
similar. In contrast to Abrams and Kavanagh, there is a section
of the Wage Act that expressly prohibits what was done here. It
could be argued that the dispute whether Clemons would receive
two days' pay on August 4 or on August 11 was trivial, but
Clemons was fired because of that dispute, according to Mechani-
cal.
Complicated questions are presented by this case. The
trial court dealt with those questions as they arose, without the
advantages of reflection that we have. This was not a perfect
trial, but the parties are not entitled to a perfect trial. I
cannot say the trial court abused its discretion in its rulings
or that the jury's decision was contrary to the manifest weight
of the evidence. I would affirm.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DENNIS CLEMONS, ) Appeal from
Plaintiff-Appellee and Cross- ) Circuit Court of
Appellant, ) McLean County
v. ) No. 95L12
MECHANICAL DEVICES, CO., )
Defendant-Appellant and Cross-) Honorable
Appellee. ) W. Charles Witte,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In January 1995, plaintiff, Dennis Clemons, filed a
complaint against defendant, Mechanical Devices, Company (Mechan-
ical), alleging that Mechanical had wrongfully discharged him in
retaliation for his filing a workers' compensation claim. In
October 1996, a jury returned a verdict for Clemons and against
Mechanical and awarded him compensatory damages of $63,520.23.
Mechanical appeals, arguing that the trial court erred
by (1) admitting evidence regarding the Illinois Wage Payment and
Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 1994))
and instructing the jury on portions of that act; (2) allowing a
lay witness to interpret statutory law; (3) allowing Clemons to
amend his complaint following the close of evidence; (4) denying
Mechanical's motion for judgment on the grounds of res judicata;
(5) denying Mechanical an opportunity to cross-examine Clemons as
to his testimony at an administrative hearing; (6) refusing to
allow a witness to testify regarding payments made by Clemons'
health insurance company; (7) refusing to give Mechanical's
nonpattern jury instruction defining "at will" employment to the
jury; and (8) allowing the jury to consider emotional distress as
an element of damages. Mechanical also argues that the verdict
was against the manifest weight of the evidence.
Because we agree with Mechanical's first argument--
namely, that the trial court erred by admitting evidence regard-
ing the Wage Act and instructing the jury on portions of that
act--we reverse and remand for a new trial.
I. BACKGROUND
In January 1995, Clemons filed a complaint against
Mechanical, alleging that Mechanical had wrongfully discharged
him in retaliation for his filing a workers' compensation claim.
This case was tried before a jury during September and October
1996, and the evidence showed the following. Mechanical, located
in Bloomington, Illinois, did design, engineering, and machine
shop work.
In August 1988, Clemons began working at Mechanical as
a machine operator. He told Mechanical's staff that he had
previously had back surgery. On June 1, 1989, Clemons injured
his back at work while lifting machine parts. He reported the
injury to his foreman, Clarence Hatfield, and the following day
(at the direction of Irene Sperry, a co-owner of Mechanical), he
saw Dr. Larry Nord, who prescribed pain medication. Although
Nord advised Clemons not to return to work, he did so that same
day and worked the rest of June without further injury.
Mechanical's workers' compensation carrier processed and paid the
bills incurred as a result of the June 1989 injury.
On July 1, 1989, Clemons heard his back "pop" while he
was working, yet he worked the remainder of his shift. Upon
leaving work that day, he told Hatfield that his back was "still
bothering" him and he was going to take it easy over the weekend.
Hatfield testified that he recalled Clemons reporting the June
1989 incident; however, he did not recall Clemons reporting an
injury on July 1, 1989. Linda Fillingham, Mechanical's office
manager, testified that she did not receive notice on July 1,
1989, that Clemons injured himself. Clemons testified that he
stayed flat on his back "the whole weekend," and his back pain
was in the same place as it was after the June 1989 injury.
On Monday, July 3, 1989, Clemons' back "popped" while
he was bending over to tie his shoes at home. He telephoned
Fillingham and told her that he was not coming to work because he
hurt his back while tying his shoes. Fillingham told him that
she would send him a health insurance form to complete. Clemons
testified that he had a conversation with Irene, who told him
that she "knew this [(the July 1989 injury)] was not workmen's
comp[ensation] and if [he] filed it that way, [he] would be
discharged." Clemons also stated that he believed Irene because
"she doesn't say anything without meaning it." At some point
after speaking with Irene, Clemons (with his wife's assistance)
completed the health insurance form, signed it, and returned it
to Mechanical. The form, as filled out by Clemons and his wife
on July 13, 1989, indicated that the July 1989 injury was not
work related.
Clemons also stated that someone from Mechanical called
Nord's office and told Nord's secretary not to file the July 1989
injury as a workers' compensation claim. Fillingham acknowledged
that she had a telephone conversation with Nord on July 10, 1989,
during which she told him to keep his records straight between
the June 1989 injury (which was being processed as a workers'
compensation claim) and the July 1989 injury (which was being
processed by Mechanical's health insurance company).
Clemons' wife, Janetta, testified that on July 3, 1989,
she heard "a loud pop" from Clemons' back as he was preparing to
go to work. Later that same day (after Clemons spoke with
Fillingham), they received a telephone call from Irene. When
Janetta told Irene that Clemons was not available, Irene said
that she did not like "to get the wives involved in things like
this" and hung up.
Clemons returned to work on Thursday, July 27, 1989.
He worked that day and Friday, July 28, 1989. He previously had
elected to take the next week (July 29, 1989, through August 4,
1989) as a vacation week.
On August 2, 1989, Clemons talked with an attorney,
Kevin Miller, at the Janssen Law Center (Janssen). On that same
day, Clemons signed a blank workers' compensation application in
Miller's office. Miller testified that he telephoned Mechanical
that same day and asked the identity of the company's workers'
compensation carrier. Someone at Mechanical told him that such a
request must be submitted in writing. Janssen's subpoenaed tele-
phone records did not show that Miller made a telephone call to
Mechanical. However, Miller stated that all of the telephone
records may not have been produced. Miller also stated that
Clemons was hesitant to file a workers' compensation claim;
nonetheless, Miller proceeded with the claim on August 2, 1989.
On August 4, 1989, Clemons went to Mechanical and told
them that he wanted his paycheck for Thursday, July 27, 1989, and
Friday, July 28, 1989. He was told that he would be paid for
those two days on August 11, 1989, in the following week's
regular check, thus making a full week's check. This was the
same way vacation had been paid to all Mechanical employees for
previous vacation periods. Mechanical paid its employees on
Fridays for the previous Thursday through Wednesday pay period
and paid them for vacations one week in advance. Miller called
and told someone at Mechanical that they could not hold the two
days' pay. Fillingham told Miller that Clemons could receive a
paycheck for those days, but if he took his pay in a manner
different from all other employees, he would no longer be em-
ployed by Mechanical. Fillingham also testified that Clemons
quit when he chose to be paid differently from all other employ-
ees and he was not fired because he retained an attorney to file
a workers' compensation claim.
Barb Gullett, Nord's receptionist, testified that when
Clemons came to Nord's office for the June 1989 injury, he filled
out a workers' compensation patient questionnaire. The first
bill sent out by Nord's office had a "WC" (workers' compensation)
designation. A bill dated July 27, 1989, also contained a "WC"
designation, but Gullett had crossed through that entry and
written "personal injury 7-3-89." Gullett stated that Nord gave
her that information. Prior to the July 10, 1989, telephone call
with Fillingham, all of Nord's records contained a "WC" designa-
tion. After the phone conversation, all of the records relating
to the July 1989 injury were changed to reflect a personal injury
designation.
On August 8, 1989, Mechanical received an application
for adjustment of claim stating that the July 1989 injury was
work related. At that time, Fillingham put the health insurance
forms on hold until she could determine whether the injury was
work related. She also stated that she voided some of the health
insurance checks and sent letters to health providers indicating
that Mechanical would not pay any health-related medical bills.
In her testimony during Mechanical's case in chief, Fillingham
stated that she had incorrectly testified that Mechanical had
paid none of Clemons' health-related medical bills because she
previously did not have access to all of the pertinent records.
She further stated that when Clemons submitted bills to Mechani-
cal for the July 1989 injury, Mechanical's health plan paid them
(except for Clemons' deductible and co-pay portions). Mechanical
did not pay other medical bills which were not submitted to it.
After the Industrial Commission denied his workers'
compensation claim for the July 1989 injury, Clemons resubmitted
his bills to Mechanical's health insurance provider. According
to Clemons, Mechanical never submitted the bills to its health
insurance company.
Randy Griffin, a former Mechanical employee, testified
that he sustained a hernia while lifting a block at work. He
reported his injury to Mechanical, and it instructed him to
complete a health insurance form. Fillingham subsequently
requested that he write a statement that his injury did not occur
at work. Griffin refused to do so because he believed it hap-
pened at work. Griffin stated that he never had any intention of
filing a workers' compensation claim; however, he did not want to
write the requested statement. That same day, Irene told him he
was no longer needed as an employee.
On this evidence, the jury returned a verdict for
Clemons and against Mechanical and awarded him compensatory
damages of $63,520.23.
II. RELEVANCE OF THE WAGE ACT
Mechanical first argues that the trial court erred by
admitting evidence regarding the Wage Act and instructing the
jury on portions of that act. Specifically, Mechanical contends
the Wage Act was irrelevant to the issues in this case. In re-
sponse, Clemons argues that evidence regarding the Wage Act was
relevant, not because he based his claim upon a violation of the
Wage Act, but because Mechanical proffered as a defense that
Clemons demanded that he be paid differently from all other
employees. We conclude that evidence regarding the Wage Act was
wholly irrelevant to the issues in this case.
A. Relevance of the Wage Act to Clemons'
Claim of Retaliatory Discharge
Clemons' initial complaint alleged that "in retaliation
for filing the worker's compensation claim, [Mechanical] wrong-
fully discharged [Clemons]." Clemons' amended complaint (filed
after the close of all evidence) alleged, in relevant part:
"10. *** [Mechanical] intentionally in-
terfered with and restrained [Clemons']
rights under the Workers' Compensation Act in
violation of 820 ILCS 305/4(h) [(West 1994)].
* * *
13. *** [I]n retaliation of [Clemons']
exercise of his statutory rights, [Mechani-
cal] wrongfully discharged [Clemons]."
During trial court arguments on Clemons' motion for leave to file
an amended complaint, he stated as follows:
"That [(the Wage Act)] is not what we
are alleging in this case; that is what [Me-
chanical] is alleging as [its] reason for
terminating [Clemons]. Our complaint alleges
that [Clemons] was terminated in retaliation
for his filing of a workers' compensation
claim. The [Wage Act] came up *** as Mechan-
ical Devices' defense in this case."
Prior to granting Clemons leave to file an amended complaint, the
court specifically noted that the "statutory rights" referred to
in paragraph 13 of the amended complaint "are in fact the
workmen's comp[ensation] statutory rights."
Thus, the only allegation of retaliatory discharge
properly before the jury involved Clemons' filing a workers'
compensation claim. To prove a retaliatory discharge for filing
a workers' compensation claim, a plaintiff must show that (1) he
was an employee before the injury; (2) he exercised a right
granted by the Workers' Compensation Act (820 ILCS 305/1 et seq.
(West 1994)); and (3) he was discharged and the discharge was
causally related to his filing a claim under the Workers' Compen-
sation Act. Gonzalez v. Prestress Engineering Corp., 194 Ill.
App. 3d 819, 823, 551 N.E.2d 793, 796 (1990). Accordingly,
Clemons did not have to show that Mechanical had violated the
Wage Act in order to prove a retaliatory discharge for filing a
workers' compensation claim.
B. Relevance of the Wage Act to Mechanical's Defense
Although Clemons agrees that he did not allege that
Mechanical wrongfully discharged him in violation of the Wage
Act, he nonetheless contends that evidence regarding that act and
whether Mechanical violated it was relevant because Mechanical
proffered as a defense that Clemons ended his employment with
Mechanical as a result of his demand that he be paid differently
from other employees. We disagree.
As Clemons correctly points out, in Miller v. J.M.
Jones Co., 225 Ill. App. 3d 799, 803, 587 N.E.2d 654, 658 (1992),
this court discussed the three-tier allocation of proof in Civil
Rights Act cases (42 U.S.C. 2000e et seq. (1994)), as described
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), although in
Miller we called it the "standard of proof." In Miller, we noted
that some courts utilize that standard in retaliatory discharge
cases. Under the three-tier allocation of proof, the plaintiff
makes out a minimal prima facie case of retaliatory discharge.
Once the plaintiff does this, the burden shifts to the defendant
to rebut the prima facie case by presenting some legitimate,
nonretaliatory reason for the plaintiff's discharge. If the
defendant meets his burden, the presumption raised by the prima
facie case is rebutted, and the plaintiff must satisfy the ulti-
mate burden of proof by showing that the defendant's reason for
the discharge is pretextual. See Miller, 225 Ill. App. 3d at
803, 587 N.E.2d at 658.
In Miller, however, this court neither applied nor
adopted the three-tier allocation of proof in retaliatory dis-
charge cases. To the extent that other courts have adopted that
allocation of proof in such cases (see Hugo v. Tomaszewski, 155
Ill. App. 3d 906, 508 N.E.2d 1139 (1987); Bragado v. Cherry
Electrical Products Corp., 191 Ill. App. 3d 136, 547 N.E.2d 643
(1989)), we decline to follow them. In the context of a retalia-
tory discharge claim, it would simply make no sense to require
the defendant to put forth a legitimate, nonretaliatory reason
for its discharge of the plaintiff. As our supreme court wrote
in Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159, 601 N.E.2d 720, 728 (1992):
"Despite the revolutionizing effect of
Kelsay[v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978)], the common law doctrine
that an employer may discharge an employee-
at-will for any reason or for no reason re-
mains the law in Illinois. [Citation.]
Kelsay only excepts discharges which violate
a clearly mandated public policy." (Emphasis
added.)
In Kelsay, the supreme court first recognized the tort of retal-
iatory discharge as an exception to the general rule that "at-
will" employment is terminable at any time for any reason or no
reason.
In addition, as this court wrote in Foiles v. North
Greene Unit District No. 3, 261 Ill. App. 3d 186, 188-89, 633 N.E.2d 24, 26 (1994), quoting 30 C.J.S. Employer-Employee Rela-
tionship 35, at 67, 40, at 70-71 (1992):
"'[A]t common law the right of the
employer to terminate the employ-
ment is unconditional and abso-
lute.'
* * *
'[A]n employment for an indefinite
term may be terminated at the will
of either party, regardless of the
length of service, for or without
cause, and without giving any rea-
son or explanation therefor ***.'"
(Emphasis added.)
Because the common law doctrine of employment at will
continues to be the law of this State, we hold that the three-
tier allocation of proof that applies in the Civil Rights Act
cases does not apply in the context of retaliatory discharge
claims. Thus, the defendant in a retaliatory discharge action is
not required to put forth evidence of a legitimate, nonretalia-
tory reason (or, for that matter, any reason) for its discharge
of the plaintiff. To hold otherwise would essentially abrogate
the common law doctrine of employment at will.
However, the defendant may choose to provide a reason
for its discharge of the plaintiff. The supreme court has held
that "[t]he element of causation is not met if the employer has a
valid basis, which is not pretextual, for discharging the employ-
ee." Hartlein, 151 Ill. 2d at 160, 601 N.E.2d at 728. In this
regard, we reject Clemons' contention that the causation element
is satisified merely because the defendant states that it fired
the plaintiff for an invalid (illegal) reason unrelated to the
retaliatory discharge claim. Considering that (1) a retaliatory
discharge claim is a narrowly circumscribed exception to the
common law doctrine of employment at will, and (2) the ultimate
issue concerning the causation element is the employer's motive
for discharging the employee (see Hartlein, 151 Ill. 2d at 163,
601 N.E.2d at 730), we hold that a "valid basis" means valid in
the context of plaintiff's claim of retaliatory discharge for
plaintiff's having filed a claim under the Workers' Compensation
Act.
Such a valid basis may indeed be "invalid" in other
contexts. For example, a defendant may proffer as a reason for
its discharge of a plaintiff-employee that the employee was dis-
charged because of (1) his age (see Mein v. Masonite Corp., 124
Ill. App. 3d 617, 618, 464 N.E.2d 1137, 1139 (1984) (where the
court held that plaintiff could not state an independent cause of
action for wrongful discharge on the basis of age because of the
comprehensive remedies provided in the Illinois Human Rights Act
(775 ILCS 5/1-101 et seq. (West 1994)))); (2) the employee's
gender (actionable pursuant to the Civil Rights Act of 1964 as
amended by the Equal Employment Opportunity Act of 1972 (42
U.S.C. 2000e (1994))); or (3) the employee's disability (action-
able pursuant to the Illinois Human Rights Act (see 775 ILCS 5/1-
101 et seq. (West 1994))). Thus, the defendant in a retaliatory
discharge action--if it so chooses--may provide any reason for
its discharge of the plaintiff, so long as the reason is not part
of the plaintiff's claim of retaliatory discharge for his having
filed a workers' compensation claim.
Applying these principles to the present case, Mechani-
cal was not required to provide any reason for its discharge of
Clemons. However, it chose to proffer a reason--namely, that
Clemons demanded to be paid differently from all other Mechanical
employees and contrary to the manner in which employees always
had been paid for weeks partially worked that abutted vacation
weeks. That reason was "valid" in the context of a retaliatory
discharge claim. Whether Mechanical was violating the Wage Act
(see 820 ILCS 115/1 et seq. (West 1994)) is wholly irrelevant to
the trier of fact's ultimate causation determination--namely,
whether Mechanical wrongfully discharged Clemons for filing a
workers' compensation claim.
In this case, the trial court repeatedly allowed in
testimony regarding the Wage Act, including erroneously allowing
Fillingham to read and interpret portions of the Wage Act to mean
that Mechanical's method of payment violated the Wage Act. See
Town of the City of Bloomington v. Bloomington Township, 233 Ill.
App. 3d 724, 735, 599 N.E.2d 62, 69 (1992) ("A court should not
permit opinion on a question of law [citations] unless the court
is dealing with a question of foreign law"); see also Magee v.
Huppin-Fleck, 279 Ill. App. 3d 81, 86, 664 N.E.2d 246, 249 (1996)
(expert testimony concerning statutory interpretation is not
proper, even if the witness is an attorney). Because the Wage
Act is irrelevant to the issues in the present case, we hold that
the court clearly abused its discretion by allowing in any
testimony regarding that act. See Gill v. Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190, 194 (1993) (a reviewing court will
not reverse a trial court's admission of evidence on relevance
grounds absent a clear abuse of discretion).
C. Prejudice to Mechanical
Mechanical further contends that the admission of the
evidence regarding the Wage Act--particularly when viewed togeth-
er with the trial court's instructing the jury on that act and
Clemons' statements during closing argument--"served only to
confuse the jury and severely prejudiced [Mechanical]." We
agree.
The trial court instructed the jury (at Clemons'
request) essentially as follows. The Wage Act provides that
all wages earned by an employee during a weekly pay period shall
be paid no later than seven days after the end of the weekly pay
period in which the employee earned the wages. Further, any
employer who knowingly discharges or discriminates against an
employee because that employee (1) has complained to the employ-
er, the State Director of Labor, or his authorized representa-
tive, that the employer has not paid him in accordance with the
Wage Act, or (2) has instituted a proceeding under or related to
the Wage Act, or (3) has testified or is about to testify in an
investigation or proceeding under the Wage Act, is guilty, upon
conviction, of a Class C misdemeanor.
This instruction was a modified version of Illinois
Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1995) (here-
inafter IPI Civil 3d) and, as such, should not be given unless
some evidence existed to support a finding that the defendant's
violation of the statute was the proximate cause of the
plaintiff's injury. French v. City of Springfield, 65 Ill. 2d 74, 81, 357 N.E.2d 438, 441-42 (1976); see also IPI Civil 3d No.
60.01, Notes on Use (which provides that "[t]his instruction
should be given only where the evidence would support a finding
that the injury complained of was proximately caused by a viola-
tion of a statute").
Because the Wage Act is irrelevant to the issues in
this case, this instruction may have confused the jury as to the
issues before it and prejudiced Mechanical in its defense--which
was that Clemons left because of a dispute over how Mechanical
paid his wages. Thus, it was critical to Mechanical's defense
that the jury understand that the only determination it needed to
make regarding Mechanical's payment method was whether Clemons'
demand to be paid differently than other employees constituted
Mechanical's motive for discharging him.
In addition, the effect of this erroneous instruction
was heightened during closing argument, when Clemons stated as
follows:
"[Clemons' attorney]: If Mechanical
Devices starts discharging their at-will
employees because of the color of their skin,
they are liable. If they start discharging
their employees for their gender, they are
liable. If they start discharging their
employees in violation of Illinois statute,
they are liable. It is as simple as that.
Read the statute." (Emphasis added.)
This comment--which the jury could easily have understood to be a
reference to the Wage Act (the "statute" that the court quoted to
the jury at Clemons' request)--may well have confused the jury
regarding the issues before it and whether a violation of the
Wage Act could support a finding of retaliatory discharge.
Under the circumstances of this case, we conclude that
the trial court's error in admitting evidence regarding the Wage
Act and instructing the jury on that statute--when viewed togeth-
er with Clemons' comments during closing argument--seriously
prejudiced Mechanical in its defense so as to deprive Mechanical
of a fair trial. Accordingly, we reverse the judgment for
Clemons and remand for a new trial.
III. ISSUES ON REMAND
Although we have determined this case must be remanded
for a new trial, Mechanical raises other issues that will likely
arise on remand. We address these issues separately.
A. The Trial Court's Refusal To Allow Mechanical To Cross-Examine
Clemons as to His Testimony at the DES Hearing
Mechanical argues that the trial court erred by refus-
ing to allow it to cross-examine Clemons regarding what he
testified to at a hearing in 1989 before the Department of
Employment Security (DES) on Clemons' claim for unemployment
compensation. We disagree.
Where the language expressed in a statute is clear and
unambiguous, a court's proper function is to enforce the law as
enacted by the legislature. Hinojosa v. Joslyn Corp., 262 Ill.
App. 3d 673, 677, 635 N.E.2d 546, 549 (1994). A court construing
a statute should read it as a whole, give the statutory language
its plain meaning, and import to the statute the fullest possible
meaning to which it is susceptible. Central Illinois Public
Service Co. v. Illinois Commerce Comm'n, 268 Ill. App. 3d 471,
484, 644 N.E.2d 817, 826 (1994). Further, in Howard v. Forbes,
185 Ill. App. 3d 148, 152, 541 N.E.2d 685, 688 (1989), this court
held that "the court must enforce the statutory privilege [of
section 1900 of the Unemployment Insurance Act (Insurance Act)
(Ill. Rev. Stat. 1987, ch. 48, par. 640)] as enacted without
resorting to other interpretation tenets."
Section 1900(A) of the Insurance Act now provides as
follows:
"Except as provided in this Section,
information obtained from any individual or
employing unit during the administration of
this Act shall:
1. be confidential,
2. not be published or open to
public inspection,
3. not be used in any court in any
pending action or proceeding,
4. not be admissible in evidence in
any action or proceeding other than
one arising out of this Act."
(Emphasis added.) 820 ILCS
405/1900(A) (West 1994).
We note that this section included the same language in its 1989
version, which was in effect at the time of the DES hearing. See
Ill. Rev. Stat. 1989, ch. 48, par. 640.
Giving this statutory language its plain and fullest
possible meaning, we conclude that "information obtained from any
individual" means just that and thereby prevents disclosure of
information obtained from the claimant in any action or proceed-
ing arising outside of the Insurance Act. To the extent McMahon
v. Richard Gorazd, Inc., 135 Ill. App. 3d 211, 224, 481 N.E.2d 787, 796 (1985), holds otherwise, we decline to follow it. Thus,
we conclude that cross-examination of Clemons regarding what he
testified to at the 1989 DES hearing is prohibited by section
1900(A) of the Insurance Act. Accordingly, we hold that the
trial court did not err by refusing to allow Mechanical to cross-
examine Clemons as to his testimony at the 1989 DES hearing.
B. The Trial Court's Refusal To Allow a Witness To Testify
Regarding Payments Made by Clemons' Health Insurance Company
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance
Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material under Supreme Court Rule 23 omitted.
C. The Trial Court's Refusal To Give Mechanical's Nonpattern
Instruction Defining "At Will" Employment to the Jury
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
D. Punitive Damages
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
IV. CONCLUSION
For the reasons stated, we reverse and remand for a new
trial consistent with the views expressed herein.
Reversed and remanded.
McCULLOUGH, J., concurs.
COOK, J., dissents. JUSTICE COOK, dissenting:
I respectfully dissent. I would affirm the judgment of
the trial court.
The Wage Act provides that "[a]ll wages earned by any
employee during a weekly pay period shall be paid not later than
7 days after the end of the weekly pay period in which the wages
were earned." 820 ILCS 115/4 (West 1994). Clemons worked
Friday, July 28, and Saturday, July 29. The pay period that
included those days ended Wednesday, August 2. On the next
payday, Friday, August 4, while he was on vacation, Clemons asked
to be paid for July 28 and 29. Mechanical responded that he
would not be paid for those days until Friday, August 11.
Mechanical finally did pay Clemons on August 4, but discharged
him that same day. The Wage Act did not require that Clemons be
paid on August 4, but the Wage Act did not allow Mechanical to
wait until August 11.
The trial court held that an illegal defense is no
defense and allowed the jury to determine whether Mechanical's
defense was an illegal defense, whether the Wage Act had been
violated. If Mechanical had conceded that it had violated the
Wage Act, the trial court apparently would have kept out any evi-
dence of that reason for firing Clemons, whether that evidence
was presented by Clemons or by Mechanical. In determining that
an illegal defense is no defense, the trial court relied in part
upon our statement in Miller that the employer should adduce
"some evidence of lawful motivation for the challenged action."
Miller, 225 Ill. App. 3d at 803, 587 N.E.2d at 658. Miller,
however, was referring to the three-tier formula of the Civil
Rights Act cases, which I agree should not be applied to retalia-
tory discharge cases. I also agree with the majority (slip op.
at 13) that "valid basis" or "lawful motivation," as used in
earlier cases, simply meant a basis or motivation that would
defeat a claim of retaliatory discharge under Illinois law.
Nevertheless, the question whether an illegal defense
can be a defense in a retaliatory discharge case must be ad-
dressed. Should an employer really be allowed to profit from its
own illegal conduct and tell the jury, "I fired plaintiff because
he was black," or "I fired plaintiff because she was a woman"?
Such defenses are usually counterproductive because they are
offensive to juries, but in the present case the jury would not
have known Mechanical's conduct was (arguably) illegal unless it
were given that information. The statement is sometimes made
that at common law an employee at will can be discharged at any
time, "for a good reason, a bad reason, or no reason at all."
Ryherd v. General Cable Co., 124 Ill. 2d 418, 427, 530 N.E.2d 431, 435 (1988). The fact that a particular "bad reason" cannot
be used offensively in a retaliatory discharge case, however,
does not require that such "bad reason" be allowed to be used
defensively. It is possible to limit the employee's argument to
the question whether he was fired in violation of the Workers'
Compensation Act, without allowing the employer to argue the
employee was fired because he was black, et cetera. Of course,
the failure to present a reason for discharge will make it diffi-
cult for the employer to succeed. See Wieseman v. Kienstra,
Inc., 237 Ill. App. 3d 721, 733, 604 N.E.2d 1126, 1135 (1992)
(Chapman, J., dissenting) (most cases find in worker's favor
unless employer had a reason for discharge).
Mechanical argues that an employer has other forums and
remedies available if he or she is fired because of race, gender,
age, disability, or in violation of the Wage Act. It is common,
however, for wrongful acts to carry collateral consequences. The
law is reluctant to allow a wrongdoer to profit from his own
wrong, particularly where he seeks to enlist the aid of the court
in doing so. For example, the courts will not enforce a check
given in payment of a gambling debt. Kedzie & 103rd Currency
Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 119, 619 N.E.2d 732,
737 (1993). The fact that other remedies exist is no answer to
the question whether an illegal defense can be a defense.
Mechanical argues that there can be no showing that the
Wage Act has been violated without a labor board finding to that
effect. That is not correct. Evidence of other crimes, wrongs,
or acts may be admitted without showing that there has been a
conviction. The proponent must show that a crime took place and
that the defendant committed it, but that proof need not be
beyond a reasonable doubt, only by more than a mere suspicion.
People v. Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348
(1996).
Even if an illegal defense is a defense, I disagree
with the majority's argument that Mechanical's violation of the
Wage Act was "wholly irrelevant." Slip op. at 8. The issue is
whether Mechanical's motive was to discharge Clemons because of
his workers' compensation claim or whether the motive was to dis-
charge him because of his complaints about being paid late (or
perhaps both). When a litigant argues it had a certain motive in
performing an act, it is relevant that such motive would result
in a violation of the criminal law. We should not assume that
Mechanical is equally willing to engage in conduct that violates
the criminal law and conduct that does not. The criminal code
may be viewed as a standard of conduct by which most individuals
and employers abide. Evidence is relevant if it has any tendency
to make the existence of any fact of consequence more or less
probable. Relevant evidence is admissible even when it is
prejudicial to the opponent. See People v. Kidd, 175 Ill. 2d 1,
37, 675 N.E.2d 910, 927 (1996) (gruesome photographs). Evidence
of other crimes is admissible if it is relevant for any purpose
other than to show propensity to commit crime. People v. Jones,
156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993). Mechanical
should not be allowed to avoid the relevant implications of its
actions just because those actions put Mechanical in a bad light.
The trial court took the position that only a violation
of the Workers' Compensation Act, and not a violation of the Wage
Act, could be a basis for recovery in a retaliatory discharge
action. Under that view, the evidence of a Wage Act violation
was admissible for some purposes, but could not be the basis for
a finding of liability or an award of damages, and a limiting
instruction was necessary. Defendant's jury instruction No. 40
would have told the jury that employment was presumed to be at
will, that at-will employees could be terminated for any reason
or no reason at all, and "if you find Dennis Clemons' filing of a
workers' compensation claim was not the determinative factor in
Dennis Clemons' discharge, you must decide in favor of Mechanical
Devices." The jury instruction had some merit, although a better
statement would have been whether the claim was "a determinative
factor." The court did give defendant's jury instruction No. 10,
listing the elements Clemons had to prove, including "that Dennis
Clemons' filing of a claim under the Workers' Compensation Act
resulted in his discharge from his employment." A limiting
instruction was necessary in this case, and non-IPI jury instruc-
tions had to be given (there are no specific instructions for
retaliatory discharge in IPI), but I cannot say that defendant's
jury instruction No. 40 would have improved upon the instructions
already given. Under defendant's jury instruction No. 10,
defendant was free to argue to the jury that a violation of the
Wage Act could not be a basis for liability and that the jury had
to find that defendant intended to retaliate for plaintiff's
filing of a workers' compensation claim before plaintiff could
recover.
A major concern here is the argument that plaintiff
sandbagged defendant, that the pleadings alleged a violation of
the Workers' Compensation Act, but plaintiff proved up a viola-
tion of the Wage Act. Under the facts of this case it would have
been improper for plaintiff to amend his pleadings to change
theories at the close of the evidence. See Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 467-68, 605 N.E.2d 493, 508
(1992) (other party would be prejudiced or surprised by the
proposed amendment). The trial court made it clear, however,
that it was not allowing a change of theories, that there was no
retaliatory discharge action for a violation of the Wage Act.
Because there was no change of theories, the amendment was not
particularly significant. Defendant argues the jury was never-
theless confused and impermissibly awarded damages for a viola-
tion of the Wage Act. The trial court recognized that an award
on that basis would be improper and took the steps it deemed
necessary to prevent it. Defendant does not suggest other steps
that should have been taken, except to argue that evidence of the
Wage Act violation should have been excluded entirely, with which
I disagree. If the evidence of the Wage Act violation is viewed,
not as a change of theory, but as impeachment of defendant's
witnesses, there was no unfair prejudice or surprise in this
case. See Flynn v. Edmonds, 236 Ill. App. 3d 770, 785, 602 N.E.2d 880, 889 (1992) (if impeaching information must be dis-
closed before trial, witness will either not appear or will
change testimony).
Mechanical argues that its office manager, Fillingham,
was improperly "allowed" to interpret statutory law. It is cer-
tainly improper for a witness to testify what the law is. The
jury takes its law from instructions given it by the judge, not
from the testimony of witnesses. See Bloomington, 233 Ill. App.
3d at 735, 599 N.E.2d at 69. When the issue is whether a party
has knowingly violated a statute, however, it is appropriate to
ask that party (1) whether it was aware of the statute, (2) is
this a common statute of which employers should be aware, (3)
whether it agrees the statute was violated, and (4) how can it be
said the statute was not violated when the statute provides X,
and the facts are Y? See Selby v. Danville Pepsi-Cola Bottling
Co., 169 Ill. App. 3d 427, 437, 523 N.E.2d 697, 702 (1988). If
Clemons were really attempting to have a witness interpret the
law, it would be unlikely that he would use Mechanical's office
manager as that witness.
Mechanical complains that the court read a portion of
the Wage Act to the jury as a part of its instructions, but
assuming the Wage Act was relevant at all to the case, it had to
be brought to the jury's attention in some manner. The proper
way for a jury to be told of the law that applies to the case is
through the instructions given it by the court. I do not consid-
er the instruction given to be an IPI No. 60.01 instruction.
Fillingham testified she voided some of the health
insurance checks and sent letters to health providers indicating
that Mechanical would not pay health-related medical bills. That
testimony shows malice on the part of Mechanical. Clemons was
entitled to payment of his bills from one source or the other,
the health insurer or the workers' compensation insurer. If the
claim were later determined to be job-related, the insurer would
have been entitled to a credit for payments already made under
the health policy. When Fillingham returned to the stand, she
changed her testimony and said that the medical bills were paid
under the health policy. Clemons testified the bills were not
paid and were turned over to a collection agency. Mechanical
then attempted to show the bills were paid by the health insurer
for Clemons' wife, after some period of time had elapsed. I
agree that testimony was getting pretty far afield and the trial
court acted within its discretion in excluding it.
It is not clear that the supreme court, when it is
faced with the issue, will hold that firing an employee who com-
plains about a violation of the Wage Act cannot give rise to a
retaliatory discharge action. The Wage Act provides:
"Any employer *** who knowingly dis-
charges or in any other manner knowingly
discriminates against any employee because
that employee has made a complaint to his
employer *** that he or she has not been
paid in accordance with the provisions of
this Act *** is guilty, upon conviction, of
a Class C misdemeanor." 820 ILCS 115/14(c)
(West 1994).
In Barr the plaintiffs alleged various constitutional rights were
violated when they were discharged for their activities in
connection with a labor dispute. The supreme court contrasted
those general allegations with Kelsay, where "the public policy
of allowing injured workers to freely file workmen's compensation
claims was clearly mandated by the legislative enactment of the
Workmen's Compensation Act." Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 525-26, 478 N.E.2d 1354, 1356 (1985). In the present
case, the legislature has clearly indicated that it is contrary
to the public policy of the state to discharge workers who
complain about violations of the Wage Act. Abrams v. Echlin
Corp., 174 Ill. App. 3d 434, 528 N.E.2d 429 (1988), did not hold
that violations of the Wage Act may never be the basis of a
retaliatory discharge action. Abrams affirmed the dismissal of
the complaint before it because the plaintiff did not identify
any provisions of the Wage Act that were violated when the
employer indicated it would set off commissions paid on returned
merchandise. Abrams, 174 Ill. App. 3d at 440, 528 N.E.2d at 433.
Plaintiff's right to commissions was not dealt with by the Wage
Act, but by a private agreement between the parties. Kavanagh v.
KLM Royal Dutch Airlines, 566 F. Supp. 242 (N.D. Ill. 1983), is
similar. In contrast to Abrams and Kavanagh, there is a section
of the Wage Act that expressly prohibits what was done here. It
could be argued that the dispute whether Clemons would receive
two days' pay on August 4 or on August 11 was trivial, but
Clemons was fired because of that dispute, according to Mechani-
cal.
Complicated questions are presented by this case. The
trial court dealt with those questions as they arose, without the
advantages of reflection that we have. This was not a perfect
trial, but the parties are not entitled to a perfect trial. I
cannot say the trial court abused its discretion in its rulings
or that the jury's decision was contrary to the manifest weight
of the evidence. I would affirm.
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